In Re Estate Mayo , 60 S.C. 401 ( 1901 )

April 18, 1901. The opinion of the Court was delivered by This is an appeal from the judgment of the Circuit Court, affirming the judgment of the probate court of Florence County, which refused to revoke letters of administration granted to J.W. McCown, as administrator of James M. Mayo, deceased. James M. Mayo died intestate in Florence County, S.C. on the 12th day of June, 1897. Letters of administration on the estate of Mayo was granted to McCown by the probate court of Florence County, on the 16th day of December, 1897. The administrator commenced an action against the Northeastern Railroad Company on the 27th day of December, 1897, under the statute, commonly referred to as Lord Campbell's act, for damages for the alleged wrongful killing of said intestate by the said company in Florence County. The said railroad company answered, denying the alleged negligence, and subsequently the cause, on motion, was transferred to Williamsburg County for trial. Then, on the 29th day of January, 1900, the railroad company made this application for revocation of the grant of administration on the ground that the probate court was without jurisdiction, in that said Mayo was a resident of Florida at the time of his death, and owned no estate in South Carolina for administration. The probate court refusing to revoke, held: (1) That the order granting administration was valid on its face, since it recited the jurisdictional facts contested, and that the railroad company had no such interests as would support its attack upon the judgment of the probate court; and (2) that upon the facts stated in the petition of the railroad company, viz: that Mayo was not a resident of this State, but was killed by a railroad train at Florence, S.C. while passing through this State, and that he left no assets in this State to be administrated, other than the right of suit given to the administrator by sections 2315 and 2316 of the Revised Statutes, the probate court of Florence County had jurisdiction to issue letters of administration, as such right of action was sufficient property to authorize the appointment of an administrator. The Circuit Court, on appeal, held that the railroad company had the right to move for revocation of the administration, but affirmed the judgment of the probate court on the second ground. We are now to consider these questions.

1. We notice as first in logical order, whether the Northeastern Railroad Co. had the right in these proceedings to attack the grant of administration by the probate court. In this matter we agree with the view taken by the probate court. The probate court is a court of record, and has jurisdiction of the grant of letters of administration. Sec. 49 of the Code of Procedure expressly enacts as follows: "The jurisdiction assumed by any probate court in any case, so far as it depends on the place of residence or the location of the estate, shall not be contested in any suit or proceeding whatever, except in an appeal from the probate court in the original case or when the want of jurisdiction appears on the record." It is also provided in sec. 57 of the Code of Procedure, that "any person interested in any final order, sentence or decree of any probate court, and considering himself injured thereby, may appeal therefrom to the Circuit Court * * * within fifteen days after notice of the decision appealed from." The usual citation to kindred and creditors was given in the proceedings to appoint the administrator, and the Northeastern Railroad Co., by the service of the complaint alleging the order of appointment, received actual notice of the order eleven days after it was granted; but as it does not appear that the said company was made a party to said proceedings, we will not hold that it was compelled to appeal therefrom, or be bound thereby for failure to appeal. Witte v. Clark, 17 S.C. 323. The railroad company, however, was not entitled to be made a party to such proceedings. It was neither next of kin, distributee nor creditor of Mayo, the intestate, and, therefore, does not fall within the class of those interested in the grant of administration. Its relation to the administration was only as a defendant in a suit for damages by the administrator, and its only interest is to defeat the action. Every debtor to an intestate's estate would have a similar interest to defeat administration, but we are not aware that a debtor was ever heard in a probate court in opposition to proceedings for administration on his creditor's estate. By analogy the position of the Northeastern Railroad Co. is no better in this regard than it would be if it were a debtor to the estate of Mayo. In re Hardy, 35 Minn., 193; 28 N.W., 219; Record v. Howard, 58 Me., 225; Cummings v. Hodgdon (Mass.), 16 N.E. Rep., 732. The effect, therefore, of sec. 49 of the Code, supra, is to exempt the judgment of the probate court, in so far as jurisdiction depends on residence of the intestate or the location of assets from any attack by the Northeastern Railroad Co., except for want of jurisdiction appearing on the record. Such want of jurisdiction does not appear on the record. The petition for administration alleged that Mayo departed this life intestate on the 12th day of June, 1897, in the county and city of Florence, South Carolina, and did not allege that he was a resident of any other State. The petition also alleged that Mayo left no personal property within the jurisdiction of the probate court of Florence County, but did not allege whether he left any other estate either in Florence County or elsewhere in the State, except the right of action for negligent killing of the intestate, which the petition alleged survived for the benefit of his widow and children named, and could only be prosecuted by the administrator. The order granting administration recites: "Whereas, James M. Mayo, late ofFlorence County, deceased, died intestate, having whilst he lived and at the time of his death, divers goods, rights and credits within the State aforesaid, c." It could not, therefore, be said that want of jurisdiction appeared on the face of the record; for leaving out of consideration whether there was any estate for administration, and leaving out of consideration whether the right of action under the statute is a survival one, or whether such right of action alone would constitute a sufficient asset or property to warrant administration in this State, still the finding that James M. Mayo was a resident of Florence County, in this State, at the time of his death, would authorize administration. Revised Statutes, secs. 2001 and 2023, the statutes relating to the grant of letters of administration, are as follows: "In case any person die intestate, the judge of probate of the county where the intestate resided, or he having no residence within the State, in the county where the greater part of his estate may be, shall grant letters of administration of the goods, chattels, rights and credits of such person deceased, to his or her relatives, in the following order, c." Rev. Stats., 1893, sec. 2001 and 2023, combined. "The granting of administration of the estate of any deceased person shall belong to the judge of probate of the county where such person was last an inhabitant; but if such person was not an inhabitant of this State, the same shall belong to the judge of probate in any county in which the greater part of his or her estate may be." Code, sec. 39. It thus appears that residence in Florence County alone appearing on the face of the record was sufficient, under sec. 49, supra, to justify dismissal of appellant's petition for revocation. This particular question is not to be regarded as affected by the following recital in the decree of the Circuit Court: "The fact is, Mayo was at the time of his death a resident of the State of Florida, and that was admitted by counsel for the administration as well as by the pleadings." This was a misapprehension by the Circuit Court. The pleadings by the administrator resisting the application for revocation of his letters distinctly declare, "not admitting any of the allegations of the petition (for revocation) upon which the said order is based, which do not appear on the face of the record of the said proceedings in the Court resulting in the judgment appointing him such administrator, and reserving the right to answer the same," and then proceeds to state four grounds why the petition should be dismissed upon the record in the probate court. Then, as a fifth ground for dismissal, the administrator alleged that, "even if all the allegations of the petition be taken as true, it appears on the face thereof that respondent's intestate left sufficient property within the jurisdiction of this Court to confer jurisdiction to grant said letters, c." It is only with respect to this last ground, which is in the nature of a demurrer to the petition, that it can with justice be said that the administrator admits that Mayo was not a resident of the State. Both before the probate court and the Circuit Court, the counsel for the administrator contended that on the face of the record in the probate court in the proceedings for appointment of the administrator, no want of jurisdiction appeared, and that the Northeastern Railroad Co. had not such interest as warranted its attack upon such judgment, and the question was independent of the next question discussed and to be determined by the record in the original proceedings.

2. On the other question, we agree with the Circuit Court, that the right of action under the statute being enforcible only by the administrator of the intestate, was warrant for the grant of administration by the probate court of Florence County, where the intestate was killed, and where the railroad company charged with the negligent killing had its residence, even though the intestate was not a resident of this

State, and owned no estate for ordinary administration in this State at the time of his death. In so holding, we agree also with the Circuit Court and the contention of appellant, that the act in question is not a revival of the old cause of action which belonged to the intestate, but creates a new cause of action for the benefit of the person named. This last point is only incidentally involved in the appeal since the Circuit Court so holds, and no appeal is from that ruling; but as the appellant relies on this proposition as the major premise of the argument for reversal, we notice it. The language of the statute is as follows:

"Sec. 2315. Whenever the death of a person shall be caused by the wrongful act, neglect or default of another, and the act, neglect or default is such as would if death had not ensued have entitled the party injured to maintain an action and recover damages in respect thereof, then, and in every such case, the person or corporation who would have been liable if death had not ensued, shall be liable to an action for damages notwithstanding the death of the person injured, although the death shall have been caused under circumstances as make the killing in law a felony.

"Sec. 2316. Every such action shall be for the benefit of the wife, husband, parent and children of the person whose death shall have been so caused; and if there be none such, then for the benefit of the heirs at law or distributees of the person whose death shall have been so caused, as may be dependent on him for a support, and shall be brought by, or in the name of, the executor or administrator of such person; and in every such action the jury may give such damages as they may think proportioned to the injury resulting from such death to the parties respectively for whom and for whose benefit such action shall be brought, and the amount so recovered shall be divided among the before-mentioned parties in such shares as they would have been entitled to if the deceased had died intestate and the amount recovered had been personal assets of his or her estate.

"Sec. 2317. All such actions must be brought within two years from the death of such person, and the executor or administrator plaintiff in the action shall be liable to costs in case there be a verdict for the defendant, or nonsuit, or discontinuance, out of the goods, chattels and lands of the testator or intestate, if any; and if none, then out of the proper goods and chattels of such executor or administrator.

"Sec. 2318. The provisions of the three last preceding sections shall not apply to any case where the person injured has for such injury brought action which has proceeded to trial and final judgment before his or her death."

In the case of Price v. Railroad Co., 33 S.C. 556, the Court held it competent for the defendant, in order to defeat the action by the administrator, to introduce in evidence a release for the injury executed by the intestate in his lifetime, on the ground that whatever would have barred the intestate of recovery had he lived and brought action, would bar his administrator; and on page 562, the Court used this language: "If the purpose was to create a new and independent cause of action, it is a little singular that the legislature should expressly provide, as it has done in sec. 2186 (2318,supra), for the defeat of one cause of action accruing to one person by the enforcement of another cause of action which had accrued to another person;" but the Court did not deem it necessary to decide "whether the statute gives a new cause of action or simply continues the original cause of action accruing to the party injured, which would otherwise terminate with his life, enlarging its scope so as to embrace compensation for the injury resulting from the death." In the case of Reed v. R.R. Co., 37 S.C. 42, the Court held that the administrator could maintain action under the statute, notwithstanding the death of the intestate was instantaneous. The Circuit Court had ruled to the contrary on the ground that under the statute the right of action was not a new action, but a revival of such action as the intestate had; and inasmuch as the intestate's death was instantaneous, he had while living no cause of action. Still the Court did not expressly decide whether the right of action was a new cause of action or a revival of the right of action had by the intestate, although the following language by Mr. Justice Pope, at page 53, would seem to imply that the Court thought the action was a new one: "That the act requires the personal representative (administrator or executor) to sue, need not trouble us. The legislature could as well impose that duty on the sheriff or the coroner. The proceeds recovered are not for creditors, or the family generally, or for the legatees, but is strictly confined to certain members of the family of the deceased." In the case of Lilly v. R.R.Co., 32 S.C. 142, the Court held it essential to a cause of action under this statute, to allege that the intestate left surviving him a wife, or children, or parents, or that the action was for their benefit; and that to allow an amendment alleging such facts would entirely change the nature of the action alleged in the complaint. And in the case of Nohrden v. N.E.R.R. Co., 59 S.C. 107, the Court held that in estimating damages under this statute, the jury could consider the wounded feelings of the beneficiaries named, resulting from the death of the person killed by the wrongful act of another.

This review of decided cases shows that the trend of decisions in this State is towards the view that the right of action under the statute is a new one and not a mere revival. This view, we think, is the correct one. It is true, that under the statute the right of action in the administrator depends upon whether the deceased, if he had lived, would have had a right to recover. Price v. R.R. and Reed v.R.R., supra. This, however, is the statutory condition upon which the right of recovery in the new created action is based, and does not indicate that the old cause of action is revived or carried forward into the new. The absence of any words showing expressly or by necessary implication an intention to make the action a survival one, indicates a contrary intent; for the absence of such words the rule of the common law that actions ex delicto die with the death of the injured person, operates. In the next place, the damages recoverable are for only such injury as results from the death to the parties for whose benefit the action is brought; whereas, if it were intended as a survival action, the recovery would very likely have been confined to damages for the loss and suffering of the person directly injured. The object, scope and measure of damages in the new statutory action is wholly different from the action as it would stand under the common law action revived. The appellant concedes that if the action merely survived the intestate, the cause of action would be a sufficient asset to warrant administration; but the contention is that the action not being a mere revival of the original action but a wholly new action, such right of action in the administrator for the benefit of the statutory beneficiaries, is not an asset or property of the intestate upon which administration could be granted. It is doubtless true, as a general proposition, that the existence of assets of the intestate in this State is essential to give the probate court jurisdiction to grant administration on the estate of a nonresident, and it is also true, that the usual meaning attached to the word "assets" is any property applicable to the payment of debts. But in view of the statute under consideration, a broader significance ought to be given to the term "assets," so as to include any right of action which cannot be enforced except by the administrator, and which is made distributable by the administrator under statutory directions. This statute creates a right which cannot be enforced except by grant of administration somewhere.

It is argued that administration should be granted in the State where the deceased was domiciled — Florida, in this case. But it does not appear in the record before us what are the statutes of Florida governing such a case, and there is no presumption that the statutes of Florida are like ours in this matter. For all we know to the contrary, it may not be possible in Florida to secure an administration upon such a claim. And in case administration could be obtained in Florida, the appointment there would not authorize a suit by the administrator in this State, in the absence of a statute of this State permitting it, and there is none. Dial v. Gary, 14 S.C. 573, and other cases that might be cited. We do not think the statute in question was intended to be dependent upon the statutes of any other State for its full execution, but is sufficient in itself to carry out its object. To hold that a foreign administration was proper or necessary in this case, when such administration could not be enforced in this State, would be to hold the statute inapplicable to non-residents, especially to non-residents owning no property in this State. Whereas, we think the statute is in terms broad enough to cover any person, resident or non-resident, with or without property in this State. To give such right of action to propertyless residents and to deny it to propertyless non-residents, would be a distinction which we think was not contemplated by the legislature — if, indeed, such a discrimination would be lawful. The statute is remedial and should be liberally construed so as to accomplish its object. We, therefore, hold that the statute creating a right of action which cannot be enforced except by an administrator, and providing for a special distribution by said administrator of the proceeds, will warrant the probate court of the county where the intestate was killed in granting administration for the purpose of enforcing such right of action. This view is well supported by authority in other jurisdictions. Hutchins v. St. Paul c. R.R. Co. (Minn.), 46 N.W. Rep. 79; Findlay v. Chicago c. R.R. Co. (Mich.), 64 N.W. Rep., 733; Woerner's American Law of Administration, sec. 205. In the case of Missouri c. R.R. Co. v. Bradley (Neb.),71 N.W. Rep., 289, the Court was unanimous in holding that under the authority of Railroad Co. v. Lewis, 24 Neb. 848, 40 N.W. Rep., 401, such a cause of action is sufficient to warrant the granting of letters of administration, although the proceeds of the action are not to be distributed according to the usual course; but a majority of the Court further held that the appointment should have been made in the domicile of the deceased non-resident, since by statute in Nebraska, an administrator duly appointed in any other State could prosecute an action in Nebraska in his capacity as administrator, it being conceded by the majority holding this last mentioned view that if the law did not permit a suit by a non-resident or foreign administrator, such a state of affairs would fix the situs of the claim in such manner that administration must be granted where the claim could be reached. This we understand to be the holding of the Nebraska Court in the case cited, which contains an interesting discussion of both sides of the question before us.

So far as we have ascertained, there are only two cases to the contrary of the view we have announced: Perry v. R.R.Co., 29 Kan., 420; Railroad Co. v. Swayne's Admr.,26 Ind., 477, cited by the appellant. Since the argument we have been referred by appellant to the case of Marvin v. MayesvilleR.R. Co., 49 Fed. Rep., 436, as supporting his contention; but this case was reversed by the Circuit Court of Appeals, Sixth Circuit, 8 C.C.A., 21, which Court held that the Kentucky statute, "giving the personal representative a right of action for the wrongful death of his decedent, will not be construed to confer such right upon a foreign administrator, contrary to the common law and the established policy of the State." See, also, on this point, Louisville Nashville R.R. Co. v. Brantly, 96 Ky., 297; 49 Am. St. R., 291, and note on page 300. It must be said, however, that in Kentucky the proceeds of such action are assets for creditors, and according to appellant's view in such case, the right of action is an asset warranting administration. For this reason we did not cite the case of Brown, Administrator, v. Louisville c. R.R. Co. (Ky.), 30 S.W. Rep., 639, and cases from other States, where the right of action is held to be a survival of the original action.

The judgment of the Circuit Court is affirmed.

MR. JUSTICE GARY concurs in the result.